The Irish Council for Civil Liberties is today calling for a public investigation into the cervical check scandal, rather than a confidential Commission of Investigation which it says will not ensure public confidence in the State’s ability to hold itself to account or vindicate the rights of women who are affected. It has said that it is imperative that any investigation which is set up must allow evidence to be used in criminal investigations.
The Taoiseach yesterday said a Commission of Investigation was one possibility for investigating the scandal, but the ICCL has said that this may further violate the rights of the women affected. In effect, a Commission of Investigation could be used to bury evidence.
In a statement, Liam Herrick, director of the ICCL, said:
“We have been calling for a review of the 2004 Commissions of Investigation Act for some time now because it simply does not provide for an effective investigation or remedy. The Act presumes that investigations will be conducted in private, and it is criminal offence carrying up to 5 years’ imprisonment for any person to publish evidence given in private. This means that people who are affected by the issues under investigation are not given the right to know or comment on the evidence being considered, and the archive of a Commission of Investigation is sealed from the public once the inquiry finishes.
Commissions of Investigation are not allowed to give their evidence to An Garda Síochána for the purposes of a criminal investigation, and they are expressly exempt from the ordinary obligation under the Data Protection Acts to provide individuals with records that are held on them. This system is totally inappropriate for investigating the serious questions that arise in relation to the Cervical Check scandal.”
In the ongoing Commission of Investigation into Mother and Baby Homes and Certain Related Matters, for example, witnesses before the investigation committee are not permitted to have a transcript of their evidence. Neither are they allowed to see or comment on the evidence being provided by the State and Church institutions that were responsible for the Mother and Baby Homes. Furthermore, the Commission has not given reasons for refusing a number of requests for public hearings. Neither is the Commission obliged to provide individuals with personal records which it holds on them.
Liam Herrick said:
“The case law of the European Court of Human Rights is clear. Where there is evidence that the right to life has been violated or there have been grave interferences with private and family life, people have the right to an effective investigation. An effective investigation is one which involves sufficient public scrutiny to secure accountability in practice as well as in theory, and one in which victims are involved to the extent necessary to safeguard their interests. In addition, an effective investigation is one that is capable of leading to prosecutions where appropriate.”
Dublin, 2 May 2018
Notes for editors:
ICCL called for a review of the 2004 Commissions of Investigation Act in its submission to the Commission on the Future of Policing, p.25. The submission is available here: https://www.iccl.ie/wp-content/uploads/2018/01/RIGHTS-BASED-POLICING-ICCL-submission-to-CFP-2.pdf
With regard to the ECtHR on effective investigation and involvement of those affected, in the case of Edwards v United Kingdom,[i] the ECtHR found that the parents of a man killed in prison were denied their right to an effective investigation notwithstanding that an inquiry, chaired by independent experts and assisted by lawyers, was commissioned by the Prison Service, Essex County Council and North Essex Health Authority and sat for 10 months and heard from about 150 witnesses. The ECtHR held that Mr and Mrs Edwards were not ‘involved to the extent necessary to safeguard their interests’ on the grounds that the inquiry was held in private and:
‘The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel or, for example, through the Inquiry Panel. They had to wait until the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred.’[ii]
[i] Paul and Audrey Edwards v the United Kingdom App No 46477/99 (ECtHR, 14 March 2002)
[ii] para 84